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Tuesday, September 23, 2014

We are writing to you on an urgent basis to express our
extreme disappointment in Canada’s positions and conduct yesterday at the
High-Level Plenary Meeting known as the World Conference on Indigenous Peoples
at the General Assembly in New York.

In his Opening Remarks, UN Secretary Ban Ki-moon set a high
standard and principled tone for the Conference: “Indigenous peoples are
central to our discourse of human rights and global development. Your
deliberations and decisions will reverberate across the international community
… The success of this Conference is integral to progress for all humanity.”

All States in the General Assembly agreed by consensus to
the Outcome Document. Canada was the sole State in the world that requested an
Explanation of Vote (EOV). Since Canada was unprepared to speak, it indicated
that it would provide its EOV in writing.

Our deep-seated concerns with Canada’s EOV include the
following.

Canada cannot accept para. 3 of Outcome Document on FPIC.
Para. 3 reflects article 19 of the UN Declaration. Yet Canada indicated in its
EOV: "Agreeing to paragraph 3 of the Outcome Document would commit Canada
to work to integrate FPIC in its processes with respect to implementing
legislative or administrative measures affecting Aboriginal peoples. This would
run counter to Canada’s constitution, and if implemented, would risk fettering
Parliamentary supremacy." However, with the enactment of the Constitution
Act, 1982, "the Canadian system of government was transformed to a
significant extent from a system of Parliamentary supremacy to one of
constitutional supremacy." (Reference re Secession of Québec, para. 72) In
Tsilhqot'in Nation, the Supreme Court ruled that, in the absence of Aboriginal
consent, "legislation may be rendered inapplicable going forward to the
extent that it unjustifiably infringes Aboriginal title." (para. 92)

FPIC constitutes a "veto". The term
"veto" does not exist in the UN Declaration. Canada has never
explained what constitutes "consent" and what "constitutes a
"veto". Is "veto" absolute? Is "veto" synonymous
with "consent"? The government has refused for years to discuss or
explain its positions. The right to FPIC is not absolute. No rights in the
Declaration are absolute, except for the right not to be subjected to genocide.
In international human rights law, human rights are generally relative and not
absolute.

Canada interprets FPIC as only consultation – not consent.
This is incorrect. In Tsilhqot'in Nation, the Supreme Court used the term
"consent" in 9 paragraphs and the "right to control" the
land in 11 paras. The Court added that the "right to control" means
"consent" must be obtained from Aboriginal titleholders. It is wrong
for Canada to claim that para. 3 of the Outcome Document – which reflects FPIC
in the Declaration – would "run counter to Canada's Constitution".
Canada cannot disregard the rulings of its highest Court.

Canada cannot support para. 4 of Outcome Document. Para. 4
indicates that States will "uphold the principles of the
Declaration". The government is treating the principles in the UN
Declaration as absolute and therefore inconsistent with Canadian law. In regard
to the Declaration, Canada indicated in 2012 to the UN
Committee on the Elimination on Racial Discrimination: "While [the
Declaration] had no direct legal effect in Canada, Canadian courts could
consult international law sources when interpreting Canadian laws, including
the Constitution." (CERD, Summary record of 1242nd meeting on 23 February
2012, UN Doc.CERD/C/SR.2142 (2 March 2012), para. 39)

Canada contradicted its own endorsement. All of the above
arguments by Canada contradict its own endorsement of the UN Declaration. In
its endorsement, the government ultimately concluded: "We are now
confident that Canada can interpret the principles expressed in the Declarationin a manner that is consistent with our Constitution and legal framework."
In its EOV, Canada reproduced many aspects of its endorsement. However, the
government intentionally omitted the above key conclusion. This constitutes bad
faith. Canada has failed to uphold the honour of the Crown. Canada has misled
the General Assembly, member States and Indigenous peoples globally.

Further, on 1 May 2008, over 100 scholars and experts in
Canadian constitutional and international law signed an "Open Letter"
indicating that the Declaration was "consistent with the Canadian
Constitution and Charter ... Government claims to the contrary do a grave
disservice to the cause of human rights and to the promotion of harmonious and
cooperative relations." Your government was provided with a copy of the
Open Letter in May 2008.

No customary international law in Declaration. According to
the September 2010 Report to the UN Human Rights Council by former Special
Rapporteur James Anaya, this position of Canada on customary international law
is "manifestly untenable" (UN Doc. A/HRC/15/37/Add.1 (15 September
2010), para. 112). For example, it is widely accepted internationally that the
prohibition against racial discrimination and the right of self-determination
constitutes customary international law – both of which are in the Declaration.
In regard to the right of self- determination, Canada argued it was customary
international law before the Supreme Court in Reference re Secession of Québec.
Moreover, according to the two human rights Covenants, Canada has an
affirmative obligation to promote and respect this collective human right.

Canada as protector of Indigenous rights. It is inaccurate
for Canada to claim that it "is committed to promoting and protecting the
rights of Indigenous peoples at home and abroad". For example, Canada's
impoverished position in the Tsilhqot'in Nation case that Aboriginal title as limited to small spots was soundly
rejected by the Supreme Court. Canada's current attempt to undermine Indigenous
peoples' status as "peoples" within the Convention on Biological
Diversity is one of many international examples.

Canada's failure to consult Indigenous peoples. The ongoing
failure to consult Indigenous rights-holders for many years leaves Canada in a
position where it continues to violate the UN Declaration and – before the
"ink is dry" – the consensus Outcome Document for the WCIP. This
repeated failure to consult violates Canada's duty under Canadian constitutional
and international law.

As you are aware, Indigenous peoples in Canada and globally
worked diligently and cooperatively with States for 30 years on the
formulation, adoption and implementation of the UN Declaration on the Rights of
Indigenous Peoples. It is unacceptable that Canada is the sole State in the
world challenging this consensus human rights instrument – particularly with
false arguments.

In light of the seriousness of the actions of the Canadian
government, we respectfully call for a complete retraction of Canada’s EOV
without qualification. Should Canada fail to retract its EOV by 6 p.m. today,
we will have no choice but to immediately write to the President of the General
Assembly, member States and Indigenous peoples globally to express the above
concerns and challenge the veracity of Canada's EOV.

In fetal form, the United Nations Declaration on the Rights of
Indigenous Peoples is being aborted before the world community before it
can deliver on normalizing the standards articulated in its provisions,
before it can provide the necessary global framework to institute a
Convention on the Rights of Indigenous Peoples, and instead is being
SWAP(ed) for a System Wide Action Plan
to be developed under the complete control of the UN bureaucracy,
modeled after the administration of the British Empire. Minions
required.

WE DENY CONSENT.

*******

[31.We request
the Secretary-General, in consultation and cooperation with indigenous peoples,
the Inter-Agency Support Group on Indigenous Peoples’ Issues and Member States,
to begin the development, within existing resources, of a system-wide action
plan to ensure a coherent approach to achieving the ends of the Declaration and
to report to the General Assembly at its seventieth session, through the
Economic and Social Council, on progress made. We invite the Secretary- General
to accord, by the end of the seventieth session of the Assembly, an existing
senior official of the United Nations system, with access to the highest levels
of decision-making within the system, responsibility for coordinating the
action plan, raising awareness of the rights of indigenous peoples at the
highest possible level and increasing the coherence of the activities of the
system in this regard.]

************* There is absolutely NO MENTION at all of the Right of Self Determination of Indigenous Peoples in the Outcome Document of the UNHLPM [WCIP].

Adopted September 22, 2014

Sixty-ninth session

Item 66 of the provisional agenda*

Rights of indigenous peoples

Draft resolution submitted by the President of the General
Assembly

Outcome document of the high-level plenary meeting of the
General Assembly known as the World Conference on Indigenous Peoples

The General Assembly,

Adopts the following outcome document:

Outcome document of
the high-level plenary meeting of the General Assembly known as the World
Conference on Indigenous Peoples

1. We, the
Heads of State and Government, ministers and representatives of Member States,
reaffirming our solemn commitment to the purposes and principles of the Charter
of the United Nations, in a spirit of cooperation with the indigenous peoples
of the world, are assembled at United Nations Headquarters in New York on 22
and 23 September 2014, on the occasion of the high-level plenary meeting of the
General Assembly known as the World Conference on Indigenous Peoples, to
reiterate the important and continuing role of the United Nations in promoting
and protecting the rights of indigenous peoples.

2. We welcome
the indigenous peoples’ preparatory processes for the World Conference,
including the Global Indigenous Preparatory Conference held in Alta, Norway, in
June 2013. We take note of the outcome document of the Alta Conference[1]
and other contributions made by indigenous peoples. We also welcome the
inclusive preparatory process for the high-level plenary meeting, including the
comprehensive engagement of the representatives of indigenous peoples.

3. We reaffirm
our support for the United Nations Declaration on the Rights of Indigenous
Peoples, adopted by the General Assembly on 13 September 2007,[2]
and our commitments made in this respect to consult and cooperate in good faith
with the indigenous peoples concerned through their own representative
institutions in order to obtain their free, prior and informed consent before
adopting and implementing legislative or administrative measures that may
affect them, in accordance with the applicable principles of the Declaration.

4. We reaffirm
our solemn commitment to respect, promote and advance and in no way diminish
the rights of indigenous peoples and to uphold the principles of the
Declaration.

5. In addition
to the Declaration, we recall the other major achievements of the past two
decades in building an international framework for the advancement of the
rights and aspirations of the world’s indigenous peoples, including the
establishment of the Permanent Forum on
Indigenous Issues, the creation
of the Expert Mechanism on the Rights of Indigenous
Peoples and the establishment of the mandate of the Special Rapporteur on the
rights of indigenous peoples. We commit ourselves to giving due consideration
to recommendations and advice i ssued by
those bodies in cooperation with indigenous peoples.

6. We encourage
those States that have not yet ratified or acceded to the International Labour
Organization Indigenous and Tribal Peoples Convention, 1989 (No. 169),[3] to
consider doing so. We recall the obligation of ratifying States under the
Convention to develop coordinated and systematic action to protect the rights
of indigenous peoples.

7. We commit
ourselves to taking, in consultation and
cooperation with indigenous
peoples, appropriate measures at the national level, including legislative,
policy and administrative measures, to achieve the ends of the United Nations
Declaration on the Rights of Indigenous Peoples and to promote awareness of it
among all sectors of society, including members of legislatures, the judiciary
and the civil service.

8. We commit
ourselves to cooperating with indigenous peoples, through their own
representative institutions, to develop and implement national action plans,
strategies or other measures, where relevant, to achieve the ends of the
Declaration.

9. We commit
ourselves to promoting and protecting the rights of indigenous persons with
disabilities and to continuing to improve their social and economic conditions,
including by developing targeted measures for the aforementioned action plans,
strategies or measures, in collaboration with indigenous persons with
disabilities. We also commit ourselves to ensuring that national legislative,
policy and institutional structures relating to indigenous peoples are inclusive
of indigenous persons with disabilities and contribute to the advancement of
their rights.

10. We commit
ourselves to working with indigenous peoples to disaggregate data, as
appropriate, or conduct surveys and to utilizing holistic indicators of
indigenous peoples’ well-being to address the situation and needs of indigenous
peoples and individuals, in particular older persons, women, youth, children
and persons with disabilities.

11. We commit
ourselves to ensuring equal access to high-quality education that recognizes
the diversity of the culture of indigenous peoples and to health, housing,
water, sanitation and other economic and social programmes to improve well
-being, including through initiatives, policies and the provision of resources.
We intend to empower indigenous peoples to deliver such programmes as far as
possible.

12. We recognize
the importance of indigenous peoples’ health practices and their traditional
medicine and knowledge.

13. We commit
ourselves to ensuring that indigenous individuals have equal access to the
highest attainable standard of physical and mental health. We also commit
ourselves to intensifying efforts to reduce rates of HIV and AIDS, malaria,
tuberculosis and non-communicable diseases by focusing on prevention, including
through appropriate programmes, policies and resources for indigenous
individuals, and to ensure their access to sexual and reproductive health and
reproductive rights in accordance with the Programme of Action of the
International Conference on Population and Development,[4]
the Beijing Platform for Action[5]
and the outcome documents of their review conferences.

14. We commit
ourselves to promoting the right of every indigenous child, in community with
members of his or her group, to enjoy his or her own culture, to profess and
practise his or her own religion or to use his or her own language.

15. We support
the empowerment and capacity-building of indigenous youth, including their full
and effective participation in decision-making processes in matters that affect
them. We commit ourselves to developing, in consultation with indigenous
peoples, policies, programmes and resources, where relevant, that target the
well-being of indigenous youth, in particular in the areas of health,
education, employment and the transmission of traditional knowledge, languages
and practices, and to taking measures to promote awareness and understanding of
their rights.

16. We
acknowledge that indigenous peoples’ justice institutions can play a positive
role in providing access to justice and dispute resolution and contribute to
harmonious relationships within indigenous peoples’ communities and within
society. We commit ourselves to coordinating and conducting dialogue with those
institutions, where they exist.

17. We commit
ourselves to supporting the empowerment of indigenous women and to formulating
and implementing, in collaboration with indigenous peoples, in particular
indigenous women and their organizations, policies and programmes designed to
promote capacity-building and strengthen their leadership. We support measures
that will ensure the full and effective participation of indigenous women in
decision-making processes at all levels and in all areas and eliminate barriers
to their participation in political, economic, social and cultural life.

18. We commit
ourselves to intensifying our efforts, in
cooperation with indigenous peoples,
to prevent and
eliminate all forms
of violence and discrimination against indigenous
peoples and individuals, in particular, women, children, youth, older persons
and persons with disabilities, by strengthening legal, policy and institutional
frameworks.

19. We invite the
Human Rights Council to consider examining the causes and consequences of
violence against indigenous women and girls, in consultation with the Special
Rapporteur on violence against women, its causes and consequences, the Special
Rapporteur on the rights of indigenous peoples and other special procedures
mandate holders within their respective mandates. We also invite the Commission
on the Status of Women to consider the issue of the empowerment of indigenous
women at a future session.

20. We recognize
commitments made by States, with regard to the United Nations Declaration on
the Rights of Indigenous Peoples, to consult and cooperate in good faith with
the indigenous peoples concerned through their own representative institutions
in order to obtain their free and informed consent prior to the approval of any
project affecting their lands or territories and other resources.

21. We also
recognize commitments made by States, with regard to the Declaration, to establish at the national
level, in conjunction with the indigenous peoples concerned, fair, independent,
impartial, open and transparent processes to acknowledge, advance and
adjudicate the rights of indigenous peoples pertaining to lands, territories
and resources.

22. We recognize
that the traditional knowledge, innovations and practices of indigenous peoples
and local communities make an important contribution to the conservation and
sustainable use of biodiversity. We acknowledge the importance of the
participation of indigenous peoples, wherever possible, in the benefits of
their knowledge, innovations and practices.

23. We intend to
work with indigenous peoples to address the impact or potential impact on them
of major development projects, including those involving the activities of
extractive industries, including with the aim of managing risks appropriately.

24. We recall the
responsibility of transnational corporations and other business enterprises to
respect all applicable laws and international principles, including the United
Nations Guiding Principles on Business and Human Rights: Implementing the
United Nations “Protect, Respect and Remedy” Framework,[6] and
to operate transparently and in a socially and environmentally responsible
manner. In this regard, we commit
ourselves to taking further steps, as appropriate, to
prevent abuses of the rights of indigenous peoples.

25. We commit
ourselves to developing, in conjunction with the indigenous peoples concerned,
and where appropriate, policies, programmes and resources to support indigenous
peoples’ occupations, traditional subsistence activities, economies,
livelihoods, food security and nutrition.

26. We recognize
the importance of the role that indigenous peoples can play in economic,
social
and environmental development through traditional sustainable
agricultural
practices, including traditional seed supply systems, and access to
credit and
other financial services, markets, secure land tenure, health care,
social services, education, training, knowledge and appropriate and
affordable technologies, including for
irrigation, and water harvesting and storage.

27. We affirm and
recognize the importance of indigenous peoples’ religious and cultural sites
and of providing access to and repatriation of their ceremonial objects and
human remains in accordance with the ends of the United Nations Declaration on
the Rights of Indigenous Peoples. We commit ourselves to developing, in
conjunction with the indigenous peoples concerned, fair, transparent and
effective mechanisms for access to and repatriation of ceremonial objects and
human remains at the national and international levels.

28. We invite the
Human Rights Council, taking into account the views of indigenous peoples, to
review the mandates of its existing mechanisms, in particular the Expert
Mechanism on the Rights of Indigenous Peoples, during the sixty-ninth session
of the General Assembly, with a view to modifying and improving
the Expert Mechanism so that it can more effectively promote respect for
the Declaration, including by better assisting Member States to monitor,
evaluate and improve the achievement of the ends of the Declaration.

29. We invite the
human rights treaty bodies to consider the Declaration in accordance with their
respective mandates. We encourage Member States to include, as appropriate,
information on the situation of the rights of indigenous peoples, including
measures taken to pursue the objectives of the Declaration, in reports to those
bodies and during the universal periodic review process.

30. We welcome
the increasingly important role of national and regional human rights
institutions in contributing to the achievement of the ends of the Declaration.
We encourage the private sector, civil society and academic institutions to
take an active role in promoting and protecting the rights of indigenous
peoples.

31. We request
the Secretary-General, in consultation and cooperation with indigenous peoples,
the Inter-Agency Support Group on Indigenous Peoples’ Issues and Member States,
to begin the development, within existing resources, of a system-wide action
plan to ensure a coherent approach to achieving the ends of the Declaration and
to report to the General Assembly at its seventieth session, through the
Economic and Social Council, on progress made. We invite the Secretary- General
to accord, by the end of the seventieth session of the Assembly, an existing
senior official of the United Nations system, with access to the highest levels
of decision-making within the system, responsibility for coordinating the
action plan, raising awareness of the rights of indigenous peoples at the
highest possible level and increasing the coherence of the activities of the
system in this regard.

32. We invite
United Nations agencies, funds and programmes, in addition to resident
coordinators, where appropriate, to support the implementation, upon request,
of national action plans, strategies or other measures to achieve the ends of
the Declaration, in accordance with national priorities and United Nations
Development Assistance Frameworks, where they exist, through better
coordination and cooperation.

33. We commit
ourselves to considering, at the seventieth session of the General Assembly,
ways to enable the participation of indigenous peoples’ representatives and
institutions in meetings of relevant United Nations bodies on issues affecting
them, including any specific proposals made by the Secretary-General in
response to the request made in paragraph 40 below.

34. We encourage
Governments to recognize the significant contribution of indigenous peoples to
the promotion of sustainable development, in order to achieve a just balance
among the economic, social and environmental needs of present and future
generations, and the need to promote
harmony with nature to protect our
planet and its ecosystems, known as Mother Earth in a number of countries and
regions.

35. We commit
ourselves to respecting the contributions of indigenous peoples to ecosystem
management and sustainable development, including knowledge acquired through
experience in hunting, gathering, fishing, pastoralism and agriculture, as well
as their sciences, technologies and cultures.

36. We confirm
that indigenous peoples’ knowledge and strategies to sustain their environment
should be respected and taken into account when we develop national and
international approaches to climate change mitigation and adaptation.

37. We note that
indigenous peoples have the right to determine and develop priorities and
strategies for exercising their right to development. In this regard, we commit
ourselves to giving due consideration to all the rights of indigenous peoples
in the elaboration of the post-2015 development agenda.

38. We invite Member
States and actively encourage the private sector and other institutions to
contribute to the United Nations Voluntary Fund for Indigenous Peoples, the
Trust Fund on Indigenous Issues, the Indigenous Peoples Assistance Facility and
the United Nations Indigenous Peoples’ Partnership as a means of respecting and
promoting the rights of indigenous peoples worldwide.

39. We request
the Secretary-General to include relevant information on indigenous peoples in
his final report on the achievement of the Millennium Development Goals.

40. We request
the Secretary-General, in consultation with the Inter-Agency Support Group on
Indigenous Peoples’ Issues and Member States, taking into account the views
expressed by indigenous peoples, to report to the General Assembly at its
seventieth session on the implementation of the present outcome document,
and to submit at the same session, through the Economic and Social Council,
recommendations regarding how to use, modify and improve existing United
Nations mechanisms to achieve the ends of the United Nations Declaration on the
Rights of Indigenous Peoples, ways to enhance a coherent, system-wide approach
to achieving the ends of the Declaration and specific proposals to enable the
participation of indigenous peoples’ representatives and institutions, building
on his report on ways and means of promoting participation at the United
Nations of indigenous peoples’ representatives on the issues affecting them.[7]

37.Wenotethatindigenouspeopleshavetherighttodetermineanddevelopprioritiesandstrategiesforexercisingtheirrighttodevelopment.Inthisregard,wecommitourselvestogivingdueconsiderationtoalltherightsofindigenouspeoplesin theelaboration of the post-2015development agenda.